THE RIGHTS OF THE Arrested PEOPLE – (PART 1)

Introduction

One of the most primary merits of our legal system is the expectation of innocence in the accused till he is found guilty at the end of a trial with evidence. In a democratic society the rights of an accused are found to be respected, though accused of an offence. The rights of the accused include the right at the time of arrest, At the time of search and seizure, during the process of trial. All those accused have the rights at the time of investigation; inquiry or trial of an offence committed for which the individual is charged and can be protected against arbitrary or illegal arrest. No person can be arrested on suspicion, No private person can follow and arrest a person on the statement of another person.

Rights of an Arrested Person are as follows:

1. Right To Silence

The right to silence is a principle derived from the common law which states that the courts or tribunals should not conclude that an individual is guilty of any contact because he has not merely responded to any questions which were asked by the police or by the court. As per the law of evidence, any confession made to a police officer is not admissible in a court of law. Right to silence is mainly concerned about confession. The accused can break his silence before a magistrate but should be voluntary and without any inducement. 

As per article 20(3) of Constitution of India guarantees every person a right against self-incrimination, it puts forth that any person who has been accused of any offence, shall not be compelled to be a witness against himself. The same was again reiterated by a decision of Supreme Court in the case of Nandini Sathpathy v. P.L.Dani; wherein it was held that no one can forcibly extract statements from the accused and that the accused has the right to keep silent during the course of interrogation (investigation). The Supreme Court again in the year 2010, held that narco-analysis, brain mapping and lie detector tests are in violation of Article 20(3) of the Constitution of India.

2. Right To Know The Grounds of Arrest

  • According to section 50 (1) of Cr.P.C every person who is being arrested by an police officer, without any warrant, is entitled to know the particulars of offence for which he is being arrested, and that particular arresting officer is duty-bound to tell the accused the grounds of arrest and cannot deny it.
  • As per Section 55 of Cr.P.C., when a subordinate officer is deputed by a senior police officer to arrest a person, then such subordinate officer shall before making such arrest, notify the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other cause for which the arrest is to be made. If this provision is not complied with, then the arrest would be rendered illegal.
  • In case of an arrest to be made under a warrant, as per Section 75 Cr.P.C. It states that “the police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and if so required, shall show him the warrant.” If the substance of the warrant is not notified, the arrest would be unlawful.
  • The Constitution of India also confers this right as one of the fundamental rights. Article 22(2) of the constitution provides that “no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.”
  • The right to be informed of the grounds of arrest is a precious right of the arrested person. Timely information of the grounds of arrest serves him in many ways. It enables him to move the proper court for bail, or in appropriate circumstances for a writ of habeas corpus, or to make an expeditious arrangement for his defence.

3. Information Regarding The Right To Be Released On Bail

Section 50(2) Cr.P.C. states that “where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail that he may arrange for sureties on his.” This will certainly be of help to persons who may not know about their rights to be released on bail in case of bailable offences. As a consequence, this provision may in some small measures, improve the relations of the people with the police and reduce discontent against them.

4. Right To Be Taken Before A Magistrate Without Delay

In case whether the arrest was made with or without a warrant, the person who has made the arrest should bring the arrested person before a judicial officer without any unnecessary delay, further the arrested person has to be confined in a police station only and nowhere else, before taking the arrested person before the magistrate. These matters have been provided in Cr.P.C under section 56 and 76 as mentioned below.

Section 56 of Cr.P.C. states that “Person arrested to be taken before Magistrate of officer in charge of police station. A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station”.

Section 76 of Cr.P.C. states that “Person arrested to be brought before Court without delay. The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person: Provided that such delay shall not, in any case, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’ s Court.

5. Right Of Not Being Detained For More Than 24 Hours Without Judicial Scrutiny

Whether the arrest is with a warrant or  without a warrant, the arrested person must be brought before the magistrate or court within 24 hours, as per Section 57 which are as follows:

“Person arrested not to be detained more than twenty- four hours. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’ s Court”.

This right has been further strengthened by its incorporation in the Constitution as a fundamental right. Article 22(2) of the Constitution proves that “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” In case of arrest under a warrant the condition to Section 76 provides a similar rule in substance.

The right to be brought before a magistrate within a period of not more than 24 hours of arrest has been created with a view-

i. To prevent arrest and detention for the purpose of extracting confessions, or as a means of compelling people to give information;

ii. To prevent police stations being used as though they were prisons- a purpose for which they are unsuitable;

iii. To afford an early recourse to a judicial officer independent of the police on all questions of bail or discharge.

In a case of Khatri(II) v. State of Bihar, the Supreme Court has strongly urged upon the state and its police authorities to ensure that this constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest be scrupulously observed. This healthy provision enables the magistrate to keep check over the police investigation and it is necessary that the magistrates should try to enforce this requirement and where it is found disobeyed, come heavily upon the police.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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